Clinical Negligence Litigation - An Introduction for Patients

The NHS provides millions of treatments every year. The private sector provides thousands more. It is inevitable that mistakes are made and that unexpected outcomes occur. The process of clinical negligence litigation offers an opportunity to patients, or the bereaved families of patients who have died, to seek redress for avoidable injury and death caused by clinical negligence. Such cases represent a tiny proportion of the number of errors made. This short introduction is intended to offer some explanations of what clinical negligence litigation is and what will be involved in bringing a claim.

What Can Litigation Achieve?

The litigation process might provide answers which you might not otherwise have found - What went wrong? Who was responsible? It might even produce an apology for errors made. But the goal of litigation is financial: to obtain compensation ("damages") for an avoidable injury or death. Accordingly, the resolution of a claim for compensation will involve financial considerations. How much will it cost to pursue the claim, what is the likely level of compensation if it is successful? What are the chances of the claim succeeding? Of those claims that are pursued through litigation, many are compromised before reaching trial. For a case to "settle" each side involved in the litigation, typically a patient and the NHS, will have to make concessions and agree upon an appropriate sum of money to be paid to the patient to stop the claim being pursued further.

Litigation does not guarantee that those individuals responsible for an avoidable injury or death will be held personally accountable. You may very well never see them give evidence at court and be questioned about what they did. It is not a disciplinary process. For the patient bringing a claim ("the claimant") success is represented by the payment of a sum of money. That can be a cause of dissatisfaction even to the successful claimant.

What Does a Claimant Need To Prove?

To succeed, a claimant needs to prove both that the care and treatment he was given was negligent and that he has suffered injury as a result of that negligence. If those elements are proved then the court will assess the compensation appropriate for the injury caused and the losses and expenses consequent upon that injury.

The claimant has the burden of proof. The defendant does not have to prove anything. Clinical negligence litigation is not an inquiry into what went wrong. It is an adversarial process. The claimant brings the claim, setting out allegations. The claimant has to prove those allegations.

Negligence is not established merely by proving that different treatment could have been given, nor even by proving that a doctor's management should have been better. A doctor or nurse is negligent only if their care, management or treatment of a patient fell below an acceptable level such that no responsible body of medical or nursing opinion, as the case may be, would condone it. If there is a responsible body of professional opinion that would support the conduct of the doctors or nurses involved, then there was no negligence, even if the great majority of doctors and nurses would have acted differently and with a better outcome for the patient. The test is different in relation whether advice was given sufficient for a patient to give their informed consent to a procedure or treatment.

Thus claimants have a high hurdle to overcome to prove negligence.

Proving negligence is not sufficient to win a case. There are many negligent errors made which do not cause harm, or which cannot be proved to have caused harm. A claim can only succeed if the claimant can prove that on the balance of probabilities the negligence caused or materially contributed to injury or death. The usual test is whether "but for" the negligence, the injury or death would not have occurred. If, absent the negligence, the patient would have suffered the same outcome from their treatment then there is no "causation" and the claim will fail. Causation is difficult to prove in clinical negligence cases when the negligent treatment is for a patient who is, in most cases, already ill or injured. It involves a comparison of the likely outcome without negligence, and the actual outcome after negligence has occurred. The difference between the two outcomes is "the injury".

How is the Claim Proved?

Claims are proved by evidence. There are three kinds of evidence:

documentary evidence, usually comprising the medical records and any relevant hospital protocols or national guidance.

lay witness evidence from the patient, his/her family, and from the doctors and nurses involved in the events giving rise to the claim.

expert witness evidence: subject to the permission of the court each party to the claim is allowed to rely on expert opinion evidence. So, if injury has been caused to a baby due to poor management of their birth, expert evidence may be required from an obstetrician and a midwife to tell the court whether the standard of care of the hospital staff was acceptable. Expert evidence may then be required from the same experts but also from a neonatologist, a neuro-radiologist and/or a paediatrician as to when and how the injury was caused and what the outcome would have been in the absence of the negligent acts or omissions. If the child is disabled then expert evidence will be required as to what needs they have and are likely to have in the future in terms of care, aids and equipment, transport and accommodation.

So, several expert witnesses may have to look through the documentary and lay witness evidence, and may have to examine the claimant or visit them at home. For every expert the claimant "instructs" the defendant will usually instruct a corresponding expert. They too will need access to the evidence and may need to examine the claimant or visit them at home. The corresponding experts might very well give differing opinions on negligence, causation and the level of money needed properly to compensate the claimant. Where there are differences that cannot be resolved by the parties' and their lawyers, a Judge will have to make decisions about whether the case is proved and what the level of compensation should be. This is done at a trial at court which might take several days.

Of claims that solicitors investigate, only a very small percentage reach trial. Some will not be pursued after initial investigations. Some will be investigated fully but after full consideration, perhaps involving a meeting of the client, experts and a barrister, it is decided that there are insufficient prospects of the claim succeeding to justify proceeding further. Some will be pursued but then founder on some new evidence or a change of opinion by an expert. Others will be pursued and will settle for an agreed sum of money. Fewer than 5% will go to trial.

You need a solicitor to help you to investigate and bring a clinical negligence claim. I cannot represent you directly, only through a solicitor. If you wish to contact me about a potential claim you can do so at npoole@kingschambers.com but I will not be able to give advice about the merits of your claim. I might be able to recommend a solicitor close to where you live.

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Learned Friend is the blog of Nigel Poole QC. Nigel practises at Kings Chambers with offices in Manchester, Birmingham and Leeds. He specialises in clinical negligence and personal injury law. These posts are intended to be of general interest and no-one should rely on them as definitive statements of the law. They are no substitute for full advice in any particular case. I would welcome comments on the posts and suggestions for future topics.
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